Tuesday, 2 August 2011

The 'Newzbin' ruling finally brings state-mandated web censorship to the UK. But it's all OK and above board, we're told, because a court order is required for each website blocked.

Which might just appease all but ardent civil liberties advocates, until you factor in money.

The problem with this back door web censorship lies in the way legal challenges are funded and costs awarded in the UK court, making this particular court-orientated approach entirely unsuitable to assess the incredibly complex and delicate balance between 'protection' and public interest.

Essentially, the public interest is not represented under the 'Newzbin' arrangement, and it needs to be. A public defence against each such blocking order must be funded on a statutory basis.

Without a statutory public interest defender, many blocking orders will go unchallenged. Each order is made between the applicant and the individual ISP, and it's not in the ISPs interest to fight each and every order as they risk having to pay the legal fees of both sides, as cyber law blogger and professor of e-governance at Strathclyde University Lilian Edwards points out in her post here.

Courts and judges don't and often can't assess the wider impact of such orders, as they can only consider (a) the evidence put before them; and, (b) the law.

If a blocking order is unchallenged, and the law does not call for a stringent public interest test, so long as the evidence presented by the applicant meets precursory inspection by the court the order will most likely succeed.

I'm calling on parliament now to stand up and decide whether we want to keep censorship, or not. Whatever parliament does, I implore our elected representatives not to sit back and let such a worrying development creep by unchallenged.

And if parliament does decide to keep web censorship, it is essential that the law is amended to resolve the public interest issue. It should also consider whether aspects of the Newzbin ruling - namely that an ISP with an existing blocking system can reasonably be required to block unlawful content when the court has existing powers of injunction - might be expanded in a future case to other areas where e.g. press injunctions are used to muzzle print media.

Rights holders versus ISPs; herein lies the problem

The 'Newzbin' case didn't actually involve the overseas website Newzbin2, which rights holders wanted ISP British Telecom to block due to the large amount of copyright-infringing material said to be available via Newzbin2's service.

The case put a group representing the big movie studies, fronted by counsel for the Motion Picture Association, against an ISP - British Telecom.

The ISP represented its interests (making money from customers) and the rights holders put their interests (making money from consumers) to a judge, who listened to the arguments and considered them against UK law (S97A of the Copyright, Designs and Patents Act 1998 as well as provisions under the EC Directive on E-Commerce, which sets out some protection for ISPs).

Both sides have made the somewhat disingenuous claim that the system is fair and proportionate becauseit's overseen by a court; and a court order is required for each site blocked.

But remember the ISPs are not obliged to challenge each and every order. In fact, there's a financial disincentive for them to challenge.

Also I see no reason why an applicant can't make a batch application for blocking, in much the same way rights holders made batch applications for Norwich Pharmacol Orders in their controversial fight against individuals infringing copyrights via solicitors ACS:Law and Davenport Lyons. However, some legal commentators have told me privately that judges do see the delicate nature of such requests, and may insist that separate applications are made for each site to be blocked.

Unless ISPs see it as in their financial interests to fight a blocking order, I can't see why they would risk the money putting their case before a court.

This could lead to sites being unfairly blocked, and, potentially, an abuse of process blocking sites which embarrass governments and corporations by publishing leaked documents (noting that copyright exists in most printed works, including government and corporate documents).

If net censorship is here to stay, Parliament must get together to (a) examine the wider implications; and, (b) come up with a better mechanism than the courts to ensure the public interest is represented when each case is considered.

2 comments:

In defence of CDPA S97A blocking:(1) It's slow, costly and cumbersome for rights holders(2) Infringing websites will simply mirror under new domain names within hours of blocking(3) Judges are far from stupid and will go to extreme lengths to consider what they see as the public interest (although, granted, this is down to views of the individual judge)(4) If S97A is seen as viable by policy makers, they will push-back on lobbyists requesting Digital Economy Act S17/18 blocking provisions

The Newzbin ruling is a hollow victory for rights holders. Blocking becoming reality has stung civil rights campaigners, but the process is totally ineffective at stopping infringement at any level!

Yet another complete and utter cluster**ck from the copyright cartels. Well done chaps, keep up the good work!!

I think that the ruling of the High Court helps web hosts. It's like saying that you will only be on the hook for 'authorising' infringement by users if they fail to put in place some fairly basic safeguards.